Disconnected from Reality: Civil Service ‘Reform’ Report Recommends Gutting Numerous Civil Rights Laws, Denying Access to Jury Trials, and Entrenching Injustice at MSPB

From pages 33-34 of this report by the Partnership for Public Service and Booz Allen Hamilton:

Administrative appeals of agency decisions to remove or discipline federal employees that are currently filed with the MSPB and/or the EEOC would now be handled by a single adjudicatory body, a reconstituted MSPB, with the exception of cases that have been brought to the OSC.

The MSPB is best positioned to expertly handle cases now brought to the EEOC and has an excellent track record of expeditiously and fairly dealing with employee disputes. The revamped board would investigate and render decisions on all employee disputes involving discipline or termination and ensure that due process rights are maintained. Further, there should be limited judicial review of an appeals authority in a single venue: the U.S. Court of Appeals for the Federal Circuit.

How It Would Work

Employees would file their complaint or appeal either through the negotiated grievance procedure if applicable or the reconstituted MSPB, but not both. If an appeal contains a formal complaint of discrimination or raises an allegation of discrimination in connection with some other management action, the case would fall under the jurisdiction of the MSPB, not the EEOC as is the case today.

The new MSPB would have increased resources and be empowered to investigate disputes and hold evidentiary hearings only if necessary, and would be required to render a final administrative decision within 120 days, a standard met today by the board in the cases it handles.

What this means, in practice, is no more access to federal district courts (jury trials) for numerous discrimination complaints for federal employees. All would be handled by a “revamped” MSPB (which has a track record of ruling for appellants less than 4 percent of the time – an “excellent track record” for rogue agencies, that is). Further, the Federal Circuit has a similar “excellent record” – of affirming the MSPB’s record 95 percent of the time.

This also means no jury trials for employees who allege racial, gender, age, or disability discrimination, or all-circuit review for whistleblowers. It also means allowing summary judgment in whistleblower and adverse action cases – something that Congress rejected in 1978.

This is the naked denial of civil rights and workplace justice under the banner of “reform.”

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A Month in Merit Protection: Recapping Civil Service News for January 2014

A Month in Merit Protection is a new feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Initial Decisions

  • Administrative Judge Nancy E. Wever reversed an agency decision to remove a postal clerk, finding the agency violated the appellant’s due process right to notice when the deciding official relied on ex parte communication that introduced new and material information. Terrano v. USPS, Docket No. SF-0752-13-0369-I-1 (Jan. 3, 2014)
  • In a pro se Individual Right of Action appeal, AJ Mary Ann Garvey granted an Animal Health Technician’s request for corrective action, finding that he made protected disclosures that an agency official performed a tracheotomy on three goats without approval and falsified data for a pilot study regarding an experiment with goats. The AJ found that appellant’s duties were taken away in retaliation for these disclosures, and that the agency was without justification for its personnel action. Heath v. Dep’t of the Army, Docket No. DA-1221-12-0654-B-1 (Jan. 27, 2014)

Precedential Decisions

  • The Board denied the agency’s petition for review (PFR) of the initial decision that reversed the appellant’s reduction in grade and pay on due process grounds. The Board rejected the agency’s argument that the appeal is not within the Board’s jurisdiction because it erred in setting the appellant’s grade at the GS-15 level. “Any error in noncompetitively promoting the appellant was in the hiring process, and the agency’s action to correct such error by retroactively cancelling the appellant’s promotion and placing her in a different GS-14 position is an appealable reduction in grade and pay.” Simmons v. HUD, 2014 MSPB 1 (Jan. 6, 2014)
  • The Board granted appellant’s PFR of an initial decision dismissing his Federal Employees’ Retirement System (FERS) benefit appeal for lack of jurisdiction, vacated the initial decision, and remanded for adjudication on the merits. The Board held that “[u]nder the unusual and compelling circumstances of this case,” including six years of missteps, errors, and unfulfilled promises, “OPM has effectively abdicated its role of adjudicating this claim. OPM’s inaction is tantamount to an administrative action or order affecting the appellant’s rights under FERS, see 5 U.S.C. § 8461(e)(1), and, therefore, this matter is properly before the Board.” Okello v. OPM, 2014 MSPB 2 (Jan. 16, 2014)
  • The Board granted appellant’s PFR of an initial decision dismissing his USERRA appeal for lack of jurisdiction, reversed the initial decision, and remanded for further adjudication. The Board agreed with appellant that discrimination based not only on the fact of military service but also on the particulars of that service (e.g., enlisted versus officer) is prohibited under USERRA. Beck v. Dep’t of the Navy, 2014 MSPB 3 (Jan. 16, 2014)
  • The Board held that appellant, an internal revenue agent who was removed and also criminally charged for improperly accessing taxpayer data without official reason to do so, was not barred by either collateral or judicial estoppel from litigating certain facts underlying his pretrial diversion agreement. Kavaliauskas v. Dep’t of the Treasury, 2014 MSPB 4 (Jan. 16, 2014)
  • The Board granted appellant’s PFR of the initial decision that sustained the agency’s indefinite suspension action, reversed the initial decision, and found that the indefinite suspension was not sustained. The Board held that the agency committed harmful error when it suspended him before he received a final decision on his security clearance revocation, upon which the suspension relied. Schnedar v. Dep’t of the Air Force, 2014 MSPB 5 (Jan. 16, 2014)
  • The Board denied appellant’s PFR, affirmed the initial decision as modified and sustained appellant’s removal. The Board found that the agency was justified in removing appellant for physical inability to perform the essential functions of the position when her position required her to appear in the office; telecommuting was not a suitable alternative. Fox v. Dep’t of the Army, 2014 MSPB 6 (Jan. 29, 2014) (related fact-check)
  • The Board denied appellant’s PFR of a dismissal of her appeal for lack of jurisdiction and affirmed and modified the initial decision. The Board found that although the appellant was not required by 5 C.F.R. 315.801 to serve a one year probationary period, under the circumstances of this case, the agency was permitted to require that appellant serve a period of probation. Calixto v. DOD, 2014 MSPB 7 (Jan. 29, 2014)

Attorney Fee Awards

  • AJ Maureen Briody awarded appellant $47,282 in attorney fees “in connection with the appellant’s successful appeal of the agency’s action removing her from her position.” Ms. Kader, the appellant, was represented by W. Phillips Jones, Esq., of the National Association of Postmasters of the United States. Kader v. USPS, Docket NY-0752-13-0060-A-1 (Jan. 16, 2014).The underlying decision is Kader v. USPS, NY-0752-13-0060-I-1 (Mar. 26, 2013).

Reports, Studies, and Newsletters

Personnel Changes

  • James M. Read began leading the MSPB’s Office of Policy and Evaluation as its newest director. (Jan. 2014)
  • MSPB announced two Senior Executive appointments. Daniel M. Turbitt (formerly an Administrative Judge in the Dallas and Washington Regional Offices) became Chief Counsel to Member Mark Robbins. Kevin J. Nash, formerly Deputy Director of the Office of Financial and Administrative Management, became its Director and Chief Financial Officer. (Jan. 8, 2014)

Other Items of Note

  • OPM’s FY 2013 Viewpoint Survey Results for OSC showed a 17 point decline in OSC employees’ perceived ability to “disclose a suspected violation of any law, rule or regulation without fear of reprisal” relative to 2012, down from 68% to 51%. (Pre-Jan. 2014)
  • OSC signed a renewed Memorandum of Understanding with the Equal Employment Opportunity Commission to increase interagency coordination in the enforcement of anti-discrimination laws. (Jan. 14, 2014)
  • OSC announced that a whistleblower disclosure of wasteful Army contracts led to recovery of $1.1M. (Jan. 15, 2014)
  • President Obama signed H.R. 3547, Consolidated Appropriations Act, 2014, which appropriated $42.7M to MSPB (with an additional $2.3M) and $20.6M to OSC. In addition, H.R. 3547 added a new provision to 5 U.S.C. 1204: “(n) The Board may accept and use gifts and donations of property and services to carry out the duties of the Board.” (Jan. 17, 2014)
  • MSPB Watch published annual MSPB case statistics. (Jan. 19, 2014)
  • Special Counsel Carolyn Lerner appeared before the Senate Homeland Security and Governmental Affairs Committee to testify about abuse of overtime at Customs and Border Protection. (Jan. 28, 2014)

Politifact Updates Fact Check of Obama’s Promised Whistleblower Protections

Tampa Bay Times’ Politifact.com has updated its long-running fact check of President Obama’s campaign promise to strengthen whistleblower laws. I was honored to be included as a source of information by its author, Lilly Maier.

Politifact’s bottom line is this:

Our ruling

Obama promised to strengthen whistleblower laws by speeding up the review process of claims and granting full access to jury trials and due process. When we last checked his promise in 2012, we rated it a Compromise, saying that Obama has made a lot of progress (especially through his appointments), but that he was nowhere near the standards set by his own campaign rhetoric.

Since then, a lot has changed.

Obama enacted structural reforms by signing the Whistleblower Protection Enhancement Act and the Presidential Policy Directive 19 – which closed many loopholes in whistleblower protections for federal employees, and gave the intelligence community free speech rights for the first time ever.

All the experts we have talked to were more than eager to acknowledge that Obama has done more to protect whistleblowers than any other president before him. But national security whistleblowers represent a glaring exception. The Obama administration has prosecuted more whistleblowers under the Espionage Act than any president before.

Additionally, Obama didn’t manage to get whistleblowers access to jury trials, which was part of his original promise.

We continue to rate his promise a Compromise.

My email interview with Ms. Maier included more information than was necessary for updating this particular fact-check, but I thought it would be valuable to include a lightly-edited excerpt of it here, for the whistleblower community, to comprehensively list the outstanding issues I’ve identified for the past 2 years which stymie access to justice at the Merit Systems Protection Board:

President Obama ran on a platform of protecting and listening to whistleblowers, as well as making sure that they have full access to courts.

The reality is that, with regards to employees who have access to the MSPB (non-national security employees, by and large), the situation has improved only marginally. The percentage of cases decided in favor of employees has increased from less than 2% to about 3-4%. Some of these numbers are available at www.mspbwatch.org/statistics.

An article written by attorney and federal whistleblower Robert J. McCarthy compared statistics at MSPB versus other whistleblower offices (Department of Labor, OSHA) and other administrative tribunals (Social Security Administration). The numbers are still unfavorable to MSPB appellants: http://mspbwatch.org/2012/07/30/mspb-judges-are-hopelessly-biased-heres-how/ and http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/october_2012/stand.cfm.

I have been trying for about 2+ years to raise awareness about the due process issues at the MSPB, as have others. The non-profit Public Employees for Environmental Responsibility recently re-sounded the alarm about an “assembly line of injustice” at MSPB, something they’ve done in 2011. It seems nothing’s changed in 2 years with Obama-appointed leadership at the helm: http://mspbwatch.org/2013/09/09/peer-mspb-draft-plan-ignores-assembly-line-injustice-in-whistleblower-cases/

The White House is fond of citing to the President’s signing of the Whistleblower Protection Enhancement Act to bolster its pro-whistleblower bona fides. While it is true that the WPEA represents much-needed reform to restore Congress’ 1978 and 1989 intentions to protect federal whistleblowers, the law itself did not provide “full access to courts.” Early versions of the WPEA would have allowed whistleblowers to go to federal district court, but tradeoffs included no jury trials and weakening of burdens of proof for agencies to justify terminations or other personnel actions. In the end, the latter proved too high a price for the whistleblower community.

On the national security front, there are reports that the White House balked at providing protections for national security employees, and thus such protections were stripped in the final WPEA version, despite its earlier promises. I believe Stephen Kohn of the National Whistleblowers Center is the person who can best speak about this: http://www.washingtontimes.com/news/2013/jun/11/obama-blamed-nsa-spying-revelations-whistleblower-/

There is an objective “gold standard” in whistleblowing laws, as identified by now-senior OSC official Jason Zuckerman. While in private practice, he co-wrote an article that called the District of Columbia’s newly-amended whistleblower law the “the strongest public sector whistleblower protection statute in the country.” What makes this law the gold standard is access to jury trials, strengthened disciplinary provisions for supervisors found to have engaged in retaliation, and public recognition of whistleblowers through statutory awards: http://mspbwatch.org/2012/06/16/what-would-state-of-the-art-federal-whistleblowing-legislation-look-like/

One of the biggest problems at MSPB is lack of transparency, condensed periods of adjudication that do not allow litigants to gather crucial evidence, and too much deference to the rulings and credibility determinations of administrative judges, which are often deemed “virtually unreviewable.” There are usually no smoking guns to point to why the statistics are lopsided against litigants, just a series of rulings (death by a thousand paper cuts) that deny litigants access to witnesses, discovery, testimony, and so forth. I am trying to shine a light on this situation by publicizing willing litigants’ full dockets: http://mspbwatch.org/2013/10/04/donate-your-docket/. Future posts will delve into specific instances to bolster my admittedly broad claim.

The Board would likely point to the statistics and say that 3-4% does not represent an accurate picture, since many litigants settle with agencies (around 30%). While this is technically correct, we have no way of knowing the quality of those settlements. Further, many cases that are “dismissed with prejudice” used to be because of what we now know to be erroneous, or at least congressionally-unintended, rulings that removed protections from disclosures (because they were made to one’s supervisor, for instance): http://mspbwatch.org/2013/06/06/appellant-success-rate-at-mspb-whats-the-right-number/ and http://mspbwatch.org/2013/06/07/mspb-executive-director-responds-to-whistleblowers-critical-article/. There is evidence that the practice continues: the Board recently limited protections for a disclosure as a per se, legal basis, in arguable contravention of Congress’ intent in 2012: http://mspbwatch.org/2013/11/06/mspb-upholds-rejection-of-disclosure-on-meuwissen-grounds/.

A contributing factor to the situation at MSPB is the absence of an independent Inspector General (its general counsel assumes this role, which I contend is a conflict of interest). Further, a recent MSPB FOIA revealed that no IG investigations took place between 2009 to 2012: http://mspbwatch.org/2013/11/07/mspbs-non-functioning-inspector-general-function-comes-into-focus/. Further, no administrative judge has been disciplined for failing to meet performance standards between 2002-2012, despite the Board adjudicating some 80,000 cases in that time: http://mspbwatch.org/2012/10/20/mspb-chair-the-board-has-not-disciplined-any-administrative-judge-for-failure-to-meet-performance-standards-between-2002-and-the-present/.

Finally, journalist David Cay Johnston has called for the MSPB to be “overhaul[ed]” recently: http://www.newsweek.com/hounding-whistleblowers-wrong-1164.

###

A last point is that the Board technically has the function of studying the merit systems systematically and answering the yes/no question of “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Chairman Susan Tsui Grundmann made an explicit pledge in her confirmation hearing to do so. To date it has not occurred, even after Ms. Grundmann elucidated the history of the “special studies function” in a subsequent Senate hearing: http://mspbwatch.org/2012/03/24/mspb-chair-grundmanns-remarks-to-the-senate-show-promise/ and http://mspbwatch.org/2011/11/17/mspb-chair-susan-tsui-grundmanns-pledge-to-the-president-and-the-congress/.

The reason for the Board’s failure to do so, I contend, is because of an institutional conflict of interest, as predicted by the DOJ in 1978: http://mspbwatch.org/2013/04/10/in-1978-the-dojs-office-of-legal-counsel-predicted-the-irrelevance-of-mspbs-special-studies-function-it-was-right/ and
http://mspbwatch.org/2013/02/15/is-a-conflict-of-interest-at-the-mspb-hampering-its-mission/ and http://mspbwatch.org/2013/03/12/sen-grassley-wonders-why-voting-section-problems-have-never-been-dealt-with/.

The above notwithstanding, the Board took issue with my and another advocate’s assertion that it has never answered the yes/no question: http://mspbwatch.files.wordpress.com/2011/11/01-08-2013_mspb-response-to-petition-for-rulemaking-re-5-usc-1204a3.pdf. You can decide for yourself, but a “founding father” of the CSRA and MSPB, Dwight K. Ink, wrote the following in 1998:

The MSPB Office of Policy and Evaluation has had excellent people but does not have anything approaching the resources needed to uncover systemic problems related to the merit principles and prohibited practices. Congress has tended to look upon the special studies as duplicative of OPM work. This is due in part to the fact that over its lifetime, so many of the MSPB studies, while useful, have been of the type that OPM should be doing rather than its primary mission under the law to conduct studies and report to the president and Congress on whether the “public interest in a civil service free of prohibited personnel practices is being adequately protected.”

http://mspbwatch.org/2013/02/16/excerpts-from-the-future-of-merit-twenty-years-after-the-civil-service-reform-act/

GAP Inconsistency Watch

Government Accountability Project Legal Director Tom Devine found himself into the papers yesterday with this quote about OSC’s underfunding crisis:

Tom Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, said OSC is being squeezed.

“They’ve been given drastically increased duties, and they have less money to carry them out,” Devine said.

Yet, as previously documented, when push comes to shove, GAP will not put actually spell out how much more funding OSC should get, despite doing so for another federal whistleblower office. It will be interesting to see if I’m proven wrong though. Also, when questioned about the very same topic just 10 years ago, here was Devine’s answer:

But Tom Devine, legal director of the Government Accountability Project — a nonprofit group supporting government and corporate whistleblowers — said that extra staff would be “a much-needed band-aid.” He called for the administration to support structural reforms that would allow federal employees to take their cases to court after six months, as corporate staff can.

Those structural reforms have not yet appeared and the funding problem is the same, yet Devine’s tune is different. So what accounts for this difference?

Also, the Merit Systems Protection Board has misapplied the Whistleblower Protection Enhancement Act in a decision that came out yesterday, refusing to apply the clarified definition of “gross mismanagement” to a pending case. When the Board decided that the WPEA applies retroactively, in late June, Devine said this:

We all should be grateful to the Merit Systems Protection Board majority for leadership in restoring credible whistleblower rights to pending challenges of retaliation, and not limiting the law’s protection to harassment that occurred after its passage.The ruling will have a crucial impact in numerous pending cases.

I guess that gratitude will have to be short-lived.

GAP’s Whistleblower Whiplash

Two developments in the whistleblower world caught the Government Accountability Project speaking out of both sides of its mouth today.

Here’s GAP’s Legal Director, Tom Devine, on news that the Federal Circuit dealt a serious blow today to national security employees’ (and possibly all federal employees’) civil service protections:

Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.

And

After Conyers, federal employees will have two rights left: be national security ‘yes people,’ or leave. A bureaucracy where it is only legally safe to be a national security ‘yes man’ is a clear and present danger to freedom for all Americans.

Of course, courts do not issue rulings destroying 100+ years of civil service protections willy-nilly. Someone has to argue for that position. Conspicuously missing from GAP’s myopic condemnation is any mention of the driver and originator of this decision: the Obama Administration, as well as Acting OPM Director Elaine Kaplan, a former Special Counsel and recipient of a GAP-sponsored award.

Turning to the second development, here’s the very same Tom Devine defending the White House on charges that the president misspoke/misled/lied to the public when he said that his executive order (PPD-19) would have given Edward Snowden a viable channel to blow the whistle. The article ably lays out all the different interpretations and positions on this issue. For my purposes, however, it’s sufficient to quote the end:

“There is no substitute for codified rights,” said GAP’s Devine. “But to be fair, the president is doing what he can to sweep in contractors” under the October directive. Devine’s discussions with White House aides indicate they believe the White House has the authority to act alone, he said, perhaps by using “expansive definitions of government employee.”

Sometime between the time Obama signed the October order and the stripping of contractor protections in the defense bill, Devine said, the issue fell off the White House radar.

So there you have it folks. When it comes to a conscious, relentless effort to eviscerate decades-long civil service protections, the Obama Administration is nowhere to be mentioned in Devine’s indignant quotes. But when the president makes a comment that perks the ears of whistleblower advocates across town, Devine is there, ready to offer innocuous sounding excuses on his behalf.

Here’s a question to my fellow whistleblowers: does this conduct do justice to your sacrifices?

Why Did Congress Add an Intelligence Community Loophole to the Contractor Whistleblower Protections in NDAA Bill?

1000px-Seal_of_the_United_States_Congress.svgThe National Whistleblowers Center is on record that Department of Defense contractors already had access to jury trials, and that Section 827(e) of the NDAA Bill, the IC loophole, (now codified at 41 U.S.C. 4712(e)) was a new provision that did not previously exist in the law.

So why did it get tacked on to a bill supposedly enhancing rights for government contractors who blow the whistle?

Here’s a relevant timeline of events related to NDAA lobbying:

  • Fourth Quarter of 2012: The Government Accountability Project lobbies Congress for passage of H.R. 4310 (the NDAA bill).
  • Monday, Dec. 10, 2012: Via email, GAP solicits signatures for an organizational petition letter (.docx).
  • Monday, Dec. 17: GAP emails the signatories to the petition letter, saying that “[t]he following has not been publicly announced yet, but we have been informed that the federal contractor provision – through our advocacy and staff negotiations – has overcome opposition.” (Emphasis added.)
  • Tuesday, Dec. 18: A House/Senate conference approves section 827(e), stripping protections for intelligence community contractors.
  • Wednesday, Dec. 19: GAP asks the signatories to hold off on publicizing the petition letter.
  • Wednesday, Dec. 19: NWC issues a “Take Action” alert, both via email and a website announcement, for the public to “urge Congress to protect National Security Whistleblowers.”
  • Friday, Dec. 21: Congress passes the NDAA bill with the loophole intact.
  • Friday, Dec. 21: GAP praises Congress for its action but also criticizes the House Permanent Select Committee on Intelligence for insisting on inclusion of the loophole.
  • Monday, Dec. 24: GAP emails members of the whistleblower community with news of the bill’s passage.
  • Wednesday, Jan. 2: President Obama signs the NDAA bill, issues a signing statement that concerns some members of Congress and divides GAP.

Please note: this bill would not have protected Edward Snowden, even assuming the loophole was not enacted and he used approved channels, because the bill takes effect only on July 1, 2013 (see Sec. 827(i)) and applies to contracts and task orders entered on or after that date.

But this bill also does nothing to protect others who are concerned, as Snowden was.

MSPB Executive Director Responds to Whistleblower’s Critical Article

In October 2012, Washington Lawyer (the publication of the DC Bar) published this article, by attorney and whistleblower Robert J. McCarthy, that was critical of OSC, MSPB (and especially the MSPB’s judge corps), and the system of adjudicating federal civil service disputes.

Now the MSPB’s executive director, James Eisenmann (a former plaintiff’s attorney at Passman & Kaplan, P.C.) responded, and he made a number of statements that are worth exploring:

Mr. McCarthy first attacks the board’s adjudicatory record, claiming that, in fiscal year 2010, administrative judges “favored” agencies in “a staggering 95 percent” of cases. Mr. McCarthy fails to note, however, that fully 57 percent of all cases brought before administrative judges were dismissed for lack of jurisdiction. Another 27 percent of cases settled.

Rebuttal: Coincidentally, I covered the issue of statistics just yesterday. While I can’t speak to the description of “favored” “against,” etc., I can say that dismissing cases for lack of jurisdiction is not merely a technical issue, but is one that has eroded confidence in the administrative system. It is the reason why the WPEA was passed. It was due to hostile decisions by the very court that Mr. Eisenmann looks to for affirmance of the quality of MSPB’s decisions. It is part of the consideration that every potential whistleblower has to make (whether they are actually aware of the technicalities involved or not): will this disclosure I am about to make cost me my job? 

In other words, it’s not that dissimilar from an assessment of actual likelihood of prevailing on the merits. As the Senate stated when marking up the WPEA:

Unfortunately, in the years since Congress passed the WPA, the MSPB and the Federal Circuit narrowed the statute’s protection of “any disclosure” of certain types of wrongdoing, with the effect of denying coverage to many individuals Congress intended to protect. Both the House and Senate committee reports accompanying the 1994 amendments criticized decisions of the MSPB and the Federal Circuit limiting the types of disclosures covered by the WPA.

Other rationales by Mr. Eisenmann include:

MSPB’s regulations are modeled on the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Its administrative judges are held to high legal standards–including detailed review by three-member board and by the Federal Circuit.

Rebuttal: This is something that can be verified, hopefully empirically. It is my hope, whether through personal experience representing appellants, or by studies or scholarship, to ascertain the adherence rate (if such a thing can be measured) of AJs to the FRCPs and FREs. It’s worth mentioning that these rules are instructive, but not controlling, on the parties and the AJs. But that said, how often do violations occur that prejudice the parties? How often do agencies fail to provide required documents, or fail to provide a privilege log? What about ex parte communications or admission of prejudicial evidence that are not policed by the AJ?

In Fiscal year 2010 the Federal Circuit affirmed 92 percent of MSPB decisions appealed to it. In fiscal year 2011 this number rose to 98 percent. This high affirmation rate speaks for the quality of the administrative judges’ and the board’s decisions.

Rebuttal: I’m not sure the conclusion Mr. Eisenmann derives from the high affirmance rate necessarily speaks to the quality of the decisions. After all, the Federal Circuit reviews decisions under a highly deferential standard of review, which does little to undo AJ determinations (discovery, credibility determinations) that “lock in” injustice for appellants. In addition, it is the very court responsible for the whistleblower-hostile decisions that caused a high number of cases to be dismissed on jurisdictional grounds, primarily from 1998/2001 to 2012. (A related issue: how the Supreme Court’s decision in City of Arlington v. FCC will affect the court’s review of MSPB’s jurisdictional determinations, now that they are likely to be owned by MSPB on appeal).

Moreover, administrative judges may be more independent than the administrative law judges Mr. McCarthy praises, who are attached to particular agencies. MSPB, by contrast, is an independent agency.

Rebuttal: I’m not sure I understand this response. The MSPB contracts with other agencies’ ALJs to provide adjudication when OSC is a party, or to adjudicate its own employees’ disputes. There is no concern here about attachment to other agencies, but yet it reserves ALJs for certain cases but not for the vast majority of MSPB’s caseload. Why is this? Maybe it has to do with the fact that what an ALJ offers is the assurance that: (i) the adjudicator is an attorney, and is in good standing; (ii) seven years’ experience as an adjudicator; (iii) the adjudicator passed an OPM examination and was selected from a list of eligibles provided by OPM; (iv) his performance cannot be rated by the agency; and (v) if the adjudicator is removed or threatened, it is only for good cause shown after a hearing. In essence, what you get with ALJs is the assurance of licensing, experience, and independence.

MSPB may be an independent agency, but the record is clear that whistleblowers have not fared well before it.

UpdateThis goes toward the point that the MSPB  “administrative judges are held to high legal standards.” This may be so, but the MSPB’s own records show that no AJ has been disciplined for failure to meet performance standards since 2002. As mentioned in the link, the “MSPB has issued 82,237 decisions between FY 2002 and FY 2011. In all those instances, not a single complaint has led to a judge being disciplined?”

Update #2: Mr. Eisenmann took issue with Mr. McCarthy’s “charge” about the election of remedies issue, essentially saying that his contention is with Congress, not the Board. This isn’t entirely correct, as the Board has a measure of discretion in the matter.

At the time the election of remedies rule was issued, in October 2012, I noted that the Board cannot retroactively apply it, as the Final Rule preamble seemed to suggest (since doing so would violate Bowen v. Georgetown Univ. Hospital). I also raised the point that reaching the same result adjudicatively might not be kosher either:http://mspbwatch.net/2012/10/19/mspb-should-not-apply-the-amended-5-c-f-r-1209-2-retroactively/

Now the Board issued a decision (Agoranos v. DOJ, June 7: http://1.usa.gov/126Va7l), that “remove[s] any doubt” on the matter and overrules cases that rely on Massimino (which was supposed to be abrogated by Congress’ imposition of election of remedies, in 1994, but wasn’t). However, many cases, such as those currently on DWOP pending the retroactivity, might wish to bring up adverse agency actions (OAA) as well as affirmative defenses (IRA). The issue of retroactivity might still apply, and the analysis I wrote in the link above would come into play, which the Board would have to confront.

So the bottom line is that there is an element of discretion to the election of remedies issue that is within the Board’s purview and judgment.

De-Muddying the Waters: GAP’s Compromised Role as Lobbyists, Not Lawyers

It has become an entrenched trope, a go-to defense, for the Government Accountability Project and its defenders to claim that GAP “can’t help everybody,” or “they helped me for free,” when its performance as an accountability organization comes under questioning. This line of deflection–this conscious blurring of the line between its functions as lawyers and lobbyists–is so powerful that it survived two different radio shows unquestioned. Until now.

Recently, GAP’s Tom Devine was on the Peter B. Collins show with his client, TSA Whistleblower Robert MacLean, who won a victory in federal court (the same show where Devine and his client displayed poor judgment by adopting the tactics of bureaucratic bullies, and not the first time for Devine). Toward the end of the show, Collins asked Devine to respond to some critiques by DOE Whistleblower Joe Carson:

Peter B. Collins (38:13):

Tom, I’d also like you to react to some information and commentary that I’ve received from Joe Carson. And I- I can’t imagine that you’ve never heard of Joe Carson. He is a profilic writer and he has contacted many agencies and congressional committees and the White House over the years. He is- he describes himself as a successful whistleblower in the Department of Energy, where he is a nuclear engineer, in Tennessee, and he’s been very active on these issues. And his central focus is on the Office of Special Counsel, and the role that it has under the 1978 in protecting whistleblowers.

And he contends that there has been what he calls a “broken covenant” – this longtime failure to enforce these rules, and in particular for the OSC, to exercise its appropriate role in protecting whistleblowers. And he starts with the contention that most federal employees don’t even know about their rights under the Office of Special Counsel. Could you- I’m sure you heard from him, so could you tell me your viewpoint on the issues that he raises?

Here was Devine’s reply (39:29):

I hear from Joe all the time, relentless, and we actually represented him, in some of his earlier victories under whistleblower rights in the Department of Energy. So I’m very familiar with his perspective.

And there have been extensive periods of time where I’ve completely agreed with him about the Office of Special Counsel and in fact our organization tried to get the institution abolished, we thought it was a trojan horse for whistleblowers. I don’t think that he is really fair at giving credit where it was due. Some of the special counsels who really did stick their necks out and worked hard and get effective results protecting whistleblowers.

Probably the area where we’ve really agreed to disagree the most is- Joe has been attacking me for a few years- it used to be a big [unintelligible]- he’s been attacking because I disagree with him that we should sort of delegate the policies on whistleblower protection to the White House Office of Legal Counsel. He thinks that this would straighten things out for whistleblowers, and I’ve just been dubious because it’s the same office that was behind the memos on drones and on legalizing torture and everytime we’ve learned about an opinion they’ve had on whistleblowers it’s been to shrink or abolish whistleblowers rights. So we’ve agreed to disagree on that particular issue.

The Broken Covenant Dodge

Collins (41:00):

And do you share his characterization about what he calls the “broken covenant” that those who occupy the OSC have failed to operate within the law, and you, know, to properly report on cases of the PPP – what is that – the prohibited personnel practices?

Devine (41:22):

Yeah, that’s all the merit system violations. I think you just can’t generalize, Peter. There’s been some of the special counsels who not only broke the covenant, they tried to destroy it. There was a Special Counsel in the eighties named Alex Kozinski who actually taught courses to federal managers how to fire whistleblowers without getting caught by his own investigators. He would tutor them in his office, how to write up the terminations to fire whistleblowers.

Collins:

Is that the Kozinski who’s now a federal judge?

Devine:

He is the chief- the chief judge of the Ninth Circuit Court of Appeals, and if he hadn’t got caught by whistleblowers from the Office of Special Counsel, he’d be on the Supreme Court right now. There were 43 votes against his Ninth Circuit circuit confirmation, because of how he broke that covenant, betraying the trust that he had as a protector of whistleblowers.

Scott Bloch, the Special Counsel under the Bush Administration, his sentencing for whether or not he’d go to jail was postponed yesterday because the evidence had been doctored about why he shouldn’t go to jail, and he was such a horrible Special Counsel that he had to resign after the FBI raided his office, and he was covering up the evidence they were seeking. There have been some people who just- they were magnets for whistleblowers by their own staff at the whistleblower protection agency.

But it’s not fair to generalize. There are some other folks who really made a difference and Joe and other members of the community, they’re observers a lot of times of what happens. I have to deliver results for people whose professional lives are at stake. And I can tell you that, right now, the Office of Special Counsel is working their tails off, and they’re getting results for whistleblowers, and a lot of- their leadership is composed of former free speech activists and employee rights activists, their whole careers. It’s not fair to say that one institution is always good or always bad, that’s just not the way life operates. And right now, we’ve gone from warning whistleblowers not to sabotage themselves by filing complaints with the Office of Special Counsel. We’ve gone from that perspective five years ago to the Office of Special Counsel being the first option to help whistleblowers, and it’s completely just dependent on the results.

Cute. Notice, however, that Devine never really answered the specific question posed by Collins: “do you share his characterization about what he calls the ‘broken covenant’ that those who occupy the OSC have failed to operate within the law, and to properly report on cases of the PPP?”

Instead, Devine claims that “you just can’t generalize” and proceeds to distract with titillating tales of political intrigue (while attempting co-opt the broken covenant term, if not dismissing this author and others as mere observers who aren’t affected by OSC’s failures and who don’t need to deliver results. And hiding once again behind his role as a lawyer to defend his actions as a lobbyist.)

The focus on “results,” however, proves too much. What’s missing in Devine’s answer is any discussion of the law (as in “those who occupy the OSC have failed to operate within the law“).

Here are some hard facts regarding just one prong of Carson’s “broken covenant” theory:

  • Carson contends that federal employees do not have an effective way to bring forward concerns (i.e. ”protected disclosures”), particularly classified ones or ones that are otherwise prohibited from public disclosure, despite OSC being the primary mechanism for this, by virtue of the 1978 Civil Service Reform Act.
  • Since 1989, OSC has received 28 disclosures from whistleblowers within the FBI, CIA, NSA, DIA, and NGIA.
    • Of those, it referred none to the agency heads for internal investigations.
  • Since 1989, OSC has received 11,174 disclosures from other executive branch agencies, over which it has whistleblower protection jurisdiction.
    • Of those, 81 were disclosures that were prohibited by law to make publicly (i.e. to the media).
    • Of these 81 prohibited/classified disclosures, 5 were referred to the relevant agencies for internal investigations.
    • Of these 81, only one involved foreign intelligence or counterintelligence information, requiring mandatory referral to the intelligence committees in Congress and the National Security Advisor.

Think about it: since 1989, of the thousands of disclosures OSC has received, only one merited confidential referral to the national security apparatus in Congress and the White House. This is so despite 9/11, the Iraq War lies, illegal torture, warrantless wiretapping, the drone strikes, and, of course, Sibel Edmonds’ explosive allegations. OSC’s failure to be a viable classified disclosure channel has cut across all tenures, all special counsels, and all administrations, including the special counsels over whom Devine weeps. So you can, in fact, generalize, contrary to Devine’s non-answer.

Rebuttal

In the second half of the show, Collins asked Carson and me to come on and provide a reaction to Devine’s interview. You can hear how pervasive the GAP-as-lawyers-not-lobbyists defense is when Collins, acting as devil’s advocate, pushed back against our arguments that GAP has cornered the market as a watchdog organization, by arguing that GAP cannot provide representation to all who seek its help. This is true. However, the critique against GAP is not that they aren’t omnipresent as counselors, but that they fail to use their clout and power as lobbyists responsibly.

For example, when Tom Devine’s role as a lobbyist is criticized, his defenders often downplay his clout (if not invoke their gratitude for his legal assistance – see?). But on Collins’ show, Devine himself proclaimed (at 37:45, first half) that MacLean helped give the entire national security community rights by lobbying Devine, who then got the President to issue PPD 19 (which bizarrely omitted the Office of Special Counsel). Devine cannot be both that powerful and a shrinking violet.

In this interview, Devine both accurately trumpeted his prominent role in whistleblower issues as well as showed how easily he weaves between his roles as lawyer and lobbyist. The two are not the same, and at times may conflict with one another. A discerning whistleblower would be wise to tell the difference.